Defendant 1 and one other

Defendants

Written indictments (prosecutions) and Appellees (public trials)

Law Firm LLC (Law Firm LLC, Attorneys Gyeong-soo et al.)

Seoul Southern District Court Decision 2013Ma2610 Decided July 3, 2014

All appeals by the Defendants are dismissed.

1. Grounds for appeal by the Defendants

A. Legal principles

Article 29(3) of the Industrial Safety and Health Act imposes an obligation on a business owner under Article 29(1) to take measures to prevent industrial accidents prescribed by Ordinance of the Ministry of Employment and Labor with respect to his/her workers. Article 29(1)1 of the same Act imposes an obligation to take measures to prevent industrial accidents that may arise when his/her workers and their employees work at the same place, among businesses that are conducted in the same place and that are contracted separately for a part of a project that is performed at the same place. However, Defendant 2 is not obligated to take measures to prevent industrial accidents that may arise when his/her workers and their employees work at the same place. However, Defendant 2 is not obligated to take measures to prevent industrial accidents under Article 29(1)1 of the same Act, such as: (i) his/her workers do not work at the same place as the workers of Nonindicted Incorporated Company 1, the subcontractor; (ii) the inspection and simple repair of the valves; (iii) their entire contracting work; and (iv) the replacement of asbestos to the valves through goods, which does not constitute industrial accidents under Article 29(1).

In addition, Defendant 1 is not subject to criminal liability for the instant accident in that it was not at the site of the instant accident.

B. Error of mistake

The death of Nonindicted 3 and the unknown consciousness of Nonindicted 2 are due to sudden gas leakage, which could not prevent Defendant 1 from taking preventive measures against industrial accidents. Accordingly, the result of the death or injury of the above victims does not have proximate causal relation with the Defendants’ breach of duty. In particular, Nonindicted 2, even though escape from the Mandole, went back to the Mandole, and went back again to the Mandole, and it led to an unidentified state. Thus, there is no proximate causal relation between Nonindicted 2’s consciousness and the Defendants’ breach of duty (the gas inhaled by Nonindicted 2 is natural gas (main gas) and that there is no hazard such as toxicity, and it merely impedes the supply of oxygen, and thus, if he did not go again to the Mandole while escape from the Mandole, it would not be likely to cause injury).

C. Unreasonable sentencing

In light of the agreed efforts with the victims of the Defendants, the punishment of KRW 5,00,00, which the court below sentenced to Defendant 1 for one year of imprisonment with prison labor and sentenced to Defendant 2 for two years of imprisonment with prison labor, is too unreasonable.

2. Determination

A. Legal principles

1) Relevant statutes

The former Occupational Safety and Health Act (amended by Act No. 11882, Jun. 12, 2013; hereinafter referred to as "Industrial Safety and Health Act")

Article 29 (Safety and Health Measures for Contracted Projects)

(1) The owner of a business, which is conducted in the same place and which falls under any of the following subparagraphs and is prescribed by Presidential Decree, shall take measures to prevent industrial accidents that may occur when his/her employees and his/her employees work together at the same place:

1. A project partially outsourced under a contract;

(2) Measures for the prevention of industrial accidents under the main sentence of paragraph (1) shall be as follows:

1. Organization and operation of a consultative body on safety and health;

(3) A business owner referred to in paragraph (1) shall take measures to prevent industrial accidents prescribed by Ordinance of the Ministry of Employment and Labor when his/her workers work at a place where any industrial accident prescribed by Ordinance of the Ministry of Employment and Labor is likely to occur.

The former Enforcement Decree of the Industrial Safety and Health Act (amended by Presidential Decree No. 24684, Aug. 6, 2013)

Article 26 (Contract-Prohibited Projects and Safety and Health Measures in Contracted Projects)

(2) "Projects prescribed by Presidential Decree" in the part other than the subparagraphs of Article 29 (1) of the Act means construction business and the projects referred to in the subparagraphs of Article 23.

Article 23 (Projects Eligible for Designation of Persons in General Charge of Health and Safety)

"Projects prescribed by Presidential Decree" in the former part of the main body of Article 18 (1) of the Act means projects falling under any of the following subparagraphs, with at least 50 full-time workers (in cases of projects falling under the provisions of subparagraphs 4 through 7, 100), including those employed by a contractor and a subcontractor, and construction projects with at least two billion won, including the construction cost of a contractor and a subcontractor:

1. Primary metal manufacturing business;

2. The business of building ships or boats;

3. Business of mining earth, sand and rock;

4. The manufacturing business (excluding subparagraphs 1 and 2).

5. The business of publishing books, magazines and other printed materials;

6. The business of publishing music and other audio products;

7. The business of recycling metal and non-metallic materials.

The former Enforcement Rule of the Occupational Safety and Health Act (amended by Ordinance of the Ministry of Employment and Labor No. 99 on March 12, 2014)

Article 30 (Circuit Inspection, etc. on Places of Work)

(4) "Place where any industrial accident prescribed by Ordinance of the Ministry of Employment and Labor is likely to occur" in Article 29 (3) of the Act means any of the following places:

10. In cases of conducting work at a place where sealed space pursuant to subparagraph 1 of Article 618 of the Safety and Health Rules is located, such place;

(5) The measures to be taken by the business owner who is a contractor pursuant to Article 29 (3) of the Act shall be governed by the Safety and Health Rules, except as otherwise expressly provided for in these Rules.

Rules on Industrial Safety and Health Standards

Article 618 (Definitions)

The terms used in this Chapter shall be defined as follows:

1. The term "closed space" means a place prescribed in attached Table 18 where there is a danger of fire, explosion, etc. due to lack of oxygen, harmful gas, etc.;

[Attachment 18]

Closed space (as specified in Article 618 subparagraph 1)

3. In order to expropriate underground utilities attached to cables, gas pipes, or underground, inside rocks, man-mades, or feet attached to underground;

Article 619 (Establishment, Implementation, etc. of Programs for Public Health Work in Confidential Space)

A business owner shall establish and implement a program for health works in sealed spaces including the following matters, in cases where workers perform work in sealed spaces referred to in attached Table 18:

1. Measurement and evaluation to verify whether the state of air before the commencement of works is appropriate;

2. Education and training on safety and health, including emergency measures;

3. Wearing and management of air Smoking gear, air percussion locks, etc. (hereafter referred to as "signal, etc." in this Chapter);

4. Other matters concerning the prevention of health disorder for workers who work in sealed spaces.

Article 620 (venion, etc.)

A business owner shall, when any worker performs his/her work in an sealed space, call the workplace to maintain the adequate air condition before he/she commences the work: Provided, That the same shall not apply where he/she allows the worker to wear an air stack, etc. after paying it, because it is impossible to call due to any danger of explosion, acid, etc. or because it is very difficult to call due to the nature of the work.

Article 624 (Evacuation, etc. at Time of Accidents)

(1) In cases where any worker is likely to shoot because oxygen is likely to be lacking or high concentration of harmful gases, etc. while performing his/her work in an sealed space, the relevant business owner shall immediately suspend his/her work and evacuate the worker concerned.

Article 625 (Keeping Evacuation Equipment)

When workers are engaged in work in the sealed space, the business owner shall prepare devices necessary for evacuation or rescue of workers in emergencies, such as air-conditioning strings, legs, and fiberss, etc.

Article 626 (Use of Engine, etc. at Time of Withdrawal)

(1) When a business owner intends to rescue workers in emergencies at an enclosed space, he/she shall require the workers engaged in the saving operations to wear an invoice, horse, etc.

(2) Workers shall wear the protective outfits paid pursuant to paragraph (1) in compliance with the direction of the business owner.

2) The judgment on the assertion that Defendant 2’s employees of Defendant 2 did not work in the same place as employees of Nonindicted Company 1, and that Defendant 2 contracted part of the check and simple repair work of valves, not in the contract. Thus, Defendant 2 did not constitute business owners under Article 29(3) and (1) of the Industrial Safety and Health Act.

The term "business owner under the provisions of paragraph (1)" under Article 29 (3) of the Industrial Safety and Health Act concerning preventive measures against industrial accidents refers to "business owner who carries out a part of a business carried out by the same place under a contract and who is prescribed by Presidential Decree" under Article 29 (1) of the same Act, and the business owner who carries out a business carried out under a contract "total" other than a part of a business carried out in the same place does not fall under such business owner (see Supreme Court Decision 2008Do7030, May 28, 2009).

However, according to the evidence duly adopted and examined by the lower court, Defendant 2 Co., Ltd. was supplied with maintenance and repair works for facilities of the Seoul Urban Gas Co., Ltd. in Gangseo-gu, Yangcheon-gu, and Yeongdeungpo-gu, Seoul Urban Gas Co., Ltd. on May 1, 2012, and subcontracted the inspection and repair of urban gas valves among the above supply and demand duties to Nonindicted Co. 1. Accordingly, Nonindicted Co. 1 had inspected the status of urban gas valves and performed the necessary repair work. However, only replacement of urban gas valves was conducted without construction by Nonindicted Co. 1 Co., Ltd. and notified the necessity of replacement, Defendant 2 Co. 1’s direct replacement work can be acknowledged.

According to the above facts, the business that Defendant 2 contracted and supplied by Defendant 2 in relation to the interior of the manle in which the accident in this case occurred is the whole maintenance and repair business of urban gas facilities inside the manle, and the subcontracted business of the above Defendant to Nonindicted Co. 1 is only the inspection and repair business of urban gas valves (excluding the replacement of valves) during the above business. Thus, Defendant 2 Co. 3 did not subcontract only part of the contracted business to Nonindicted Co. 1 Co., Ltd., and the entire subcontracted the entire business. Thus, the Defendants’ assertion that Defendant 2 subcontracted the entire business is without merit.

In addition, Article 29(1) of the Occupational Safety and Health Act provides that “The Defendants shall take measures to prevent industrial accidents that may arise when their employees and their employees work together at the same place of business,” and Article 29(3) of the same Act provides that “the business owner under paragraph (1) shall take measures to prevent industrial accidents.” Thus, in order to ensure that the business owner is a business owner obligated to take industrial accident prevention measures under paragraph (3) of the same Article, the employees employed by the business owner and their employees must work together at the same place of business, and since the employees employed by the non-indicted 2 Co., Ltd. and the employees employed by the non-indicted 1 Co., Ltd. do not work together at the same place of business, Defendant 2 Co., Ltd. cannot be deemed as a business owner under paragraph (3) of the same Article. However, if the business owner’s employees and the employees of the contractor are likely to work together at the same place of business, it does not necessarily mean that the above requirements have been met, and this part of the Defendants’ assertion is without merit.

3) Determination as to the assertion that the work performed by Nonindicted Co. 1 does not constitute a project under the Enforcement Decree of the Occupational Safety and Health Act

According to the above relevant Acts and subordinate statutes, a project subject to Article 29(3) of the Industrial Safety and Health Act is a construction business pursuant to Article 26(1) of the Enforcement Decree of the same Act, and the evidence duly adopted and examined by the court below and the court below and the court below pursuant to Article 26(1) of the same Enforcement Decree. In particular, comprehensively taking account of the results of the fact-finding on the National Statistical Office, the gas leakage maintenance and repair of valves, valve replacement, piping facility relocation work, and leakage maintenance and repair work are included in pipes and cooling and heating construction business under the Korean Standard Industrial Classification, and this constitutes a kind of construction business. Accordingly, the inspection and maintenance work of a gas valve subcontracted to Nonindicted Co. 2 Co. 1 constitutes a construction business, and Defendant 2 Co. 3 is included in business owner under Article 29(3) of the Industrial Safety and Health Act. Thus, this part of the Defendants’ assertion is without merit.

4) Determination as to the assertion that Defendant 1 does not bear criminal liability on the ground that Defendant 1 was not in the accident site of this case

The Defendants asserted that Defendant 1’s criminal liability should be denied on the ground that the crime of violation of the Occupational Safety and Health Act by Supreme Court Decision 2009Do11906 Decided November 25, 2010 is established on the following grounds: (a) it is not established solely by the fact that the business owner did not take necessary safety measures at the workplace without taking safety measures; (b) the business owner is aware of the fact that the business owner does not take safety measures at the workplace and will continue to take such measures in the future; and (c) the business owner did not individually and specifically instruct the safety measures at the workplace, even if the business owner did not take such measures individually and specifically, even if the business owner did not take such measures; and (d) Defendant 1’s criminal liability, which was not at the scene of accident, should not be denied.

On the other hand, the above Supreme Court decision does not establish a crime of violation of the Occupational Safety and Health Act solely on the fact that dangerous work at the workplace of the business owner was conducted without taking safety measures. It is concluded that the crime of violation was committed only when the business owner ordered work without taking safety measures or neglected such work despite being aware of the fact that the work is being performed without taking safety measures, and the act of violation was committed by the business owner. However, the above crime is established even if the business owner knew of the fact that the work is being performed without taking safety measures at the workplace and will continue such work in the future, and if the work is performed without taking safety measures at the workplace, the business owner neglected it without being taken, and even if the business owner did not individually and specifically order such work, the above crime is established.

However, according to the evidence duly adopted and examined by the court below, Defendant 1 was aware that this case’s valves inspection and maintenance work will be conducted, and Defendant 1 instructed Defendant 4, a subordinate employee, to witness the site instead of his witness. At the time, Defendant 1’s instructions given to Defendant 4 was merely an act of causing work location and Nonindicted 3 to become aware of his work, and did not specifically instruct measures to prevent industrial accidents. Defendant 4 was not a general office worker, and Defendant 4 did not take measures to prevent industrial accidents as prescribed by the rules on the Standards for Industrial Safety and Health at the site of the accident. According to the above facts acknowledged, Defendant 1 knew that the work in this case was conducted without taking measures to prevent industrial accidents and neglected this part of the Defendants’ assertion is without merit.

B. Error of mistake

First of all, the death of Nonindicted 3 and the unknown consciousness of Nonindicted 2 are due to sudden gas leakage, and even if Defendant 1 took preventive measures against industrial accidents, it cannot be prevented, and thus, the result of the death or injury of the above victims does not have proximate causal relation with Defendant 1’s breach of duty.

Defendant 1 did not take measures for the prevention of industrial accidents at the time of the accident. Considering the following circumstances, if Defendant 1 conducted industrial accident prevention measures at an enclosed space, there is sufficient possibility that the victims would not have any outcome, and there is proximate causal relation between Defendant 1’s violation of duties and the victims’ thought. In other words, the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court should be immediately interrupted and the relevant workers should be evacuated if there is a concern that the victims would have been lack of oxygen during their work at the sealed space pursuant to Article 624(1) of the above Rules, even if it was difficult for the victims to wear the gas valve at the scene of the accident without immediately evacuation and to prevent them from wearing it, it is acknowledged that the victims would have been first out of the scene of the accident while leaving the scene of the accident.

Next, I would like to look at the argument that there is no proximate causal relation between Non-Indicted 2's unknown state of consciousness and Defendant 1's breach of duty, since Non-Indicted 2's escape from the Mandones, and returned to the Mandones again.

The proximate causal relation between the breach of duty and the result of ideas is not limited to the only one which caused the breach of duty to cause the death or injury in the course of performing official duties, but to the case where there is another fact, such as the negligence of the victim or a third party, between the breach of duty and the result of thought, etc., can be recognized if such fact can be anticipated normally (see, e.g., Supreme Court Decisions 93Do3612, Mar. 22, 1994; 2014Do6206, Jul. 24, 2014). However, as in the instant case, if the same fee was used in common with the instant case, it can be sufficiently predicted that the act to seek for it is possible, and even if the victim non-indicted 2 went out of the last place, and thus, even if the victim's consciousness was unknown due to the lack of consciousness, proximate causal relation between Defendant 1's breach of duty and the consciousness of non-indicted 2.

C. Unreasonable sentencing

Considering that the Defendants paid KRW 120,000 to the victim Nonindicted 3 and agreed with the victim Nonindicted 3’s bereaved family members, and that Nonindicted 3 made efforts to recover from damage by depositing KRW 15,00,000 to the victim Nonindicted 2, and that the victims did not take safety measures, the victim Nonindicted 3 was dead due to the instant accident, and the victim’s non-indicted 2 was in an unknown state, and the victim’s non-indicted 2 was gross; Defendant 1’s failure to witness the work site was grossly negligent; and other various circumstances that serve as the condition for sentencing specified in the instant case, the sentence imposed by the lower court is appropriate, and it cannot be deemed unfair because it was excessively unreasonable.

3. Conclusion

Therefore, the defendants' appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since the defendants' appeal is without merit. It is so decided as per Disposition.

Judges Lee Jin-jin (Presiding Judge)